COMMENTS ON FORCE, CROWD AND "LESS LETHAL" DIRECTIVES, JULY/AUGUST 2024 To Chief Day, Inspector Buckley, Lieutenant Morgan, PPB Policy Analysts, Independent Court Monitor Team, Portland Committee on Community Engaged Policing, Mayor/Police Commissioner Wheeler, US Dept. of Justice, Citizen Review Committee, Training Advisory C ouncil and the Portland Police Bureau: Below are comments from Portland Copwatch (PCW) on the Directives posted for review in July which focus on Force, Crowd Control and "Less Lethal" weapons (https://www.portland.gov/police/directives - overview). As we wrote in the comments on Directive 910 on Force Reporting, it is unusual that these were posted off of the standard schedule (of the 1st/15th of the month) and that the Crowd policy was not sent out in the automated email to those interested in the Directive s project. Changes we suggested based o n longstanding community concerns were not made. While a few useful changes are being proposed, overall these three policies are flawed in continuing to give police too much leeway to use force, enabling the PPB's radical change to remove hobbling (hog - tying), forced handcuffing and "force against resist ance" from mandatory force reporting. The Bureau's long explanation for the change, which includes the video in which police can be seen manhandling an apparently houseless person, is now online at https://www.portland.gov/police/news/2024/7/23/proposal - revise - category - iv - non - deadly - force - reporting - investigation - and * In the interest of brevity, we've tried to summarize those comments we have made previously with no action from the Bureau, you can refer to our previous comments which were attached to the draft policies for details.** As we have done before, we strongly suggest that the Bureau give labels to all of the major sections of the Directives, such as the Definitions, Policy and Procedure sections. Our comments refer to the Procedure section unless otherwise noted. ------------- DIRECTIVE 1010.00 USE OF FORCE (previous comments December 2023) __New/Updated Comments De Minimis= Da Mickey Mouse: As we wrote in the comments on Directive 910.00, if you are the person who has force applied to you by a police officer, you do not feel it was "minimally intrusive" and, if the officer were another civilian, c ould press charge s for harassment or assault. Thus, we object to the new Definition for De Minimis, and as a group which promotes third - party recording of police, strongly disagree that reviewing body camera footage will provide sufficient evidence about what led up to and happened during officer use of force. Disengagement Partially Clarified: A Definition has been added for the term "disengagement" which is "the intentional decision, based on the totality of the circumstances, to discontinue contact with a person the member could lawfully take into custody." F air enough, though arguably that decision could also be made if the officer were just able to detain or cite a person without actually taking them into custody. However, we continue to think the language in Section 1.1.3 is too subjective in requiring that the "benefits [of] police intervention are 'clearly' outweighed by the risks associated with the call." It might not be the risk factor that prompts disengagement, but rather weighing the governmental interest and realizing that walking away will not pose harm to the community. For instance, if the officers know they can catch up to a person later, they can disengage. Had officers made that decision when they confronted Kendra James in 2003, she would likely still be alive. Warnings Are Threats, Not De - Escalation: We noted previously that Section 1.1.2.1.5 implies that making threats ("warnings") is a form of de - escalation, which it is not. The new Definition of Warnings makes that clear by saying a warning is "an officer's v erbal order intended to obtain compliance and convey to the recipient that failure to comply with the order may result in an officer's use of force." Try that in an argument with a family member sometime and see how well it calms down the situation. More Warnings, Same Variances: Section 5.1.3.1 continues to exclude warning requirements for Vehicle Intervention and now, De Minimis force. This means that pointing of a firearm and other previous Category IV force that was not minimized now _do_ require warnings, so, thank you at least for that. Not Sure About This One: The Bureau is proposing to cut this sentence from the introduction to the Less Lethal Weapons Section (6.1): "Less lethal force tactics provide members a range of options, from the use of bodily force to the use of less lethal weap ons, for managing encounters with threatening or actively resistive persons." We're not sure how we feel about this or why the change is being proposed. __Previous Comments, Summarized: Define and Explain De - Escalation Better: The Bureau agrees that lowering force on a person after police already used violence is one kind of de - escalation ("Reactive," Section 1.3), and that the other is using words and non - verbal cues to avoid the use of force ("Proactive," Section 1.1). Therefore these terms should both be in the Definitions section and used throughout for clarity. Don't Ditch De - Escalation: We are still concerned the Directive suggests officers skip de - escalation and go right to violence (Section 1.3). Limit Force As the City Agreed: Policy Section 5 still does not match the language from the US Department of Justice Settlement Agreement about officers not using force or using the least amount of force. Paragraph 66, which contains the language we're ref erencing, is still under review. Force Isn't Necessary: Policy Section 3 wisely advises police to realize their own actions could escalate a situation, but th en states that escalation "may influence the necessity for force." Similarly, Policy Sections 2 and 5 talk about the "need" to u se force and should be rewritten to underscore that it is a _choice_ to use violence. Shock and Awe Not Needed for Civilian Law Enforcement: We keep suggesting that the force officers use should be described as "proportional" to any used by community members to avoid police over - reacting (Section 2.1.3). Can't Cops "Box In" a Car Without Contact?: We noted that there are two kinds of "Boxing in" listed in the Definitions, dynamic and static, but both require officers to touch their patrol cars to the community member's. We suggest a no - contact version as a third option. Clearer Definition of Force: The words "physical or mechanical intervention" used to be part of Definition of Use of Force (in 2014) and should be added again. Bad Touch: As noted in our discussion of De Minimis force, the idea that "control holds and handcuffing without resistance do not constitute force" violates community norms on when it's ok to put hands on another person and should at least be considered in trusive by police, if not reportable force. Cross - Reference Performance: Analyzing force confrontations is in the Directive on Satisfactory Performance (315.30) but should be summarized here. Close Large Loopholes: Officers can use force that is not Bureau - approved if they have "substantial justification" (Member Responsibilities, Section 2.3.1, and Moving Vehicles/Deadly Force, Section 9.4.3.4.2). The Directive should list specific examples. Reasons People May Not Be Complying: We still urge the Bureau to include mental health crisis and intoxication impairment be added as possible reasons a person does not respond to warnings in Section 5.1 (similar to Section 2.2.1.2). More Graham Standards: In addition to the three aspects of the "Graham Standard" listed in Section 2.1.2, the Directive should also list the suspect's impact on the public, time, and available resources. This is No Choke: Section 9.4.2 should not allow officers to use choke holds as a form of deadly force, following the George Floyd incident and uprising... not to mention the death of Tony Stevenson in Portland in 1985. Underscore Seriousness of Blunt Force Trauma: PCW believes that striking people in the head, neck or throat with a hard object (in Definition of Deadly Force) should be prohibited. For example, Officer Corey Budworth. Narrow Circumstances to Shoot at Vehicles: Previous versions of this Directive said a threat had to come from something other than the vehicle itself for officers to shoot at a moving car. If the PPB wants to keep Section 9.4.3 intact, the cauti on that if you kill the driver of a moving car, it can become a danger in of itself (9.4.3.3) should be moved to the top. Be Clear about Violence at Protests: The Directive now refers officers to Directive 635.10 on Public Order Events / Crowd Control instead of including specific restrictions. Because 635.10 depends on 1010.00, we suggest listing those restrictions here as w ell. Poor Doggies: We still disagree with the PPB and the US DOJ for removing violence against non - human animals from this policy. ----------------- DIRECTIVE 635.10 Portland Police Bureau Response to Public Order Events (previous comments March 2024) Note: this section contains references to some of the 19 recommendations made by the Citizen Review Committee (CRC) in September, 2021 from the categories Equipment Use (EU) and De - Escalation (DE), as well as references to some of CRC's 2015 recommendation s. __New/Updated Comments: Chemical Confusion: In our last comments we asked for clarity about chemical weapons with the "same effect" as tear gas. The new version lists specific items the Bureau considers to be "tear gas." Many of these items seem to have manufacturer - specific name s which do note describe the chemicals the PPB is exposing people to. This still needs more definition. Unlawful Unlawful Assembly Definition?: A Definition has been added for "Unlawful Assembly." Some of it seems to refer to the state statute on riot (ORS 166.015). The Directive allows police to disperse, and perhaps attack, an entire crowd if "five or more assembled persons engage in trespass" or engage in a number of activities including "damaging property." There have been incidents where people drawing chalk slogans/pictures on the sidewalk have been accused of property damage. There need to be more prec ise guidelines to avoid abuse of this declaration. Better Escape Route Language: The Bureau has added language to Section 8.4.2.2.2 saying that guidance on dispersal should include "ensur[ing] that avenues of escape are available to the crowd." This is excellent and addresses a previous concern, except tha t the section begins with "When time and circumstances permit." No, if you demand people have to leave you must always provide a way for them to leave. We also repeat our previous comment that telling people what direction to go should be mandatory as well and not dependent on circumstances. What is it with Cops and Loopholes?: PCW also asked the Bureau to re - insert language requiring officers to be "diplomatic and non - confrontational." New Section 6.1.1.1 uses "positive and non - confrontational." BUT. It says "When appropriate, members should engage" in this manner. It's always appropriate! Chill out, take a deep breath, think about your mindfulness c lasses, and de - escalate. Stop creating loopholes for officers who cannot control their anger. Call It What You Want, Collecting Information Violates State Law: We continue to disagree with the City's interpretation of ORS 181A.250,which prohibits collecting or maintaining information on people's social, political or religious affiliations without r easonable suspicion of criminal activity. The Directive still allows video - recording for "situational awareness," with no caveat about criminal conduct, and Section 12.1.1 allows for live video feeds which may even be recorded. Now a new Section 12.2 encou rages officers to activate their Body Worn cameras "when engaging with the public during a public order event," weakly suggesting "when feasible and consistent with state law." Language about criminal conduct needs to be added to this section. State Law Says You Can't Spy on Protests, So Stop It: The Bureau continues to assert that it can take video for "situational awareness," which then gets turned over to the City Attorney. . The ACLU of Oregon prevailed in a lawsuit (which, sadly, the City i s in the process of appealing) against livestreaming from protests, since doing so without a criminal predicate violates that law. Section 12.1.1 continues to allow live video feeds. It also allows those live feeds to be recorded with authorization from th e Incident Commander. Although the policy explicitly says the authorization cannot be based on monitoring the associations/views of the crowd, live video being transmitted seems to fall under the statute's ban on "collecting information" -- whether or not i t is retained. The statute's language on reasonable suspicion of criminal conduct should be added to clarify the Directive. Slightly Improved Point - of - Contact: Although it only appears in one place (Section 6.1.1.2), the Bureau added "person of influence" to clarify who police might try to contact during a protest, which reflects a suggestion PCW made, thank you. The new term s hould be repeated in other places where the term "person - in - charge" is used. Shifting "Mutual Aid" Problems: PCW previously expressed concern that the Directive talks about working with other agencies (Section 15.1) without requiring they be trained the same way as the PPB. The requirement remains for them to attend a briefing (15. 1.1), but that is all. We understand that the new Mutual Aid agreement (and don't get us started on how that coopts a community term for solidarity work) will have Gresham and Multnomah County officers patrolling the streets to free up Portland cops for pr otest response. OK, but now that shifts the problem of people without DOJ - required de - escalation training from the "front lines" to... everywhere else in the City. Perhaps the PPB has considered this issue. Section 15.1.3 explicitly says officers from othe r jurisdictions are allowed to rely on their own policies and procedures, rather than the PPB's, which could wind up making things exponentially worse. ------ __Previous Comments, Summarized: Passive Resistance Defined, Not Explained: As noted before, there is now a Definition for "Passive Resistance" but it is only used in one place (Section 9.5.2). People can still be arrested for failing to disperse, which is a form of passive resi stance (Se ction 11.1). Harmful Tactic Not Named: Sometimes officers "bull - rush" a crowd to get them to disperse faster. This tactic should be addressed in the Directive. It is not accommodating for people with disabilities, and has led to lawsuits. Prioritize De - Escalation: The word "de - escalate" doesn't appear outside the Definitions Section until Section 5. It should be a primary tactic listed in the Directive. Food, Not Bombs: The Definition of tear gas includes the word "bomb" to describe a canister that contains tear gas. Considering the escalation in militarization of police, such language should be avoided. Consideration of What?: The Directive asks officers to consider whether chemical weapons should be deployed near "hospitals, schools... uninvolved community members, [and] residential areas" (Section 14.1.6.3), but not what specific elements to consider. ( See CRC EU #2). Public Servants Should Not Hide Their Identities When Using Violence: Section 13.2 asks officers provide their name and identification number to the public, including by using a business card "if practical, safe and tactically feasible." The iss ue of ident ification should align with the Bureau (and City's) transparency goals and with Directive 312.50 on Identification. If Chief Resch's temporary order allowing officers to use numbers instead of names has become permanent (which is implied in Section 13), th e Bureau needs to go back to the drawing board. Perhaps you already know this, but it's very hard to file complaints against officers when you don't know who they are. If members of the public do not file complaints, the Bureau has no ability to learn from its mistakes and become the learning institution it professes to be. Also, this Directive and 312.50 point to each other for prevailing guidance, which is confusing. All Cops Identifiable: To the extent officers from other jurisdictions will be patrolling the streets or aiding with crowd control, the City should require all officers to wear identification on their outermost garment, and use its influence to rev ise stat e law to ensure such practices. Don't Kettle: Even though the Directive says each officer must have reasonable suspicion to detain any person (Section 11.3), the Definition of Mass Detention implies there will continue to be "kettling" wherein officers surround protestors, and sometimes demand to take their photographs / identification before letting them go. Stop it. Set Thresholds: As with the Unlawful Assembly Definition, Section 1.2 allows officers to interfere with an event if the participants do not "comply with city laws and ordinances." Officers should not be able to disrupt for minor offenses like jaywalking. T he phrase about complying with ordinances should be struck. Dress for Success: PCW still suggests adding language reminding officers that they can escalate a situation just by showing up in "riot gear." The Bureau previously cut the Section. (see CRC DE #1.) Explain "Consistent" Dispersal Orders: Section 5.7.1.1 says orders from police must be "consistent" but that could mean saying the same thing over and over. The policy should clearly state that directions should not be contradictory (such as "ge t on the si dewalk"/"get off the sidewalk"). (see CRC DE #3.) Bullying is Unacceptable: Section 5.4.1.2 tells officers to "communicate targeted information to specific individuals to provide direction." PCW repeats that police should not call out the names of people they know, but say "you in the red sweatshirt" to o thers. Violence Begets Violence and Anger: The Bureau is surely aware that when they use violence to arrest people in a crowd, it often results in riling up that crowd. Decisions should be made based on the level of criminal behavior and likelihood of escalating tensions. Section 5.4.4 should not tell officers that riotous acts may "necessitate the use of force," as noted in our comments on 1010.00. More Loopholes Allow Targeting Support People: Section 11.2.4 prohibits officers from detaining or arresting media or legal observers -- except if they engage in some kind of lawbreaking. Again, the level of governmental interest has to be considered so off icers don't take minor violations as excuses to violate the First Amendment. Indiscriminate Use Now OK?: Sections 9.3 and 9.4 on using chemical and impact weapons appear to limit the indiscriminate use of those weapons on crowds, but the Bureau is, for some reason, removing the word "indiscriminate" from the Directive. These and Section 9.5.1 need to be clearer about not hitting the wrong people with weapons/force. (See CRC EU #3 and CRC DE #5.) Need More Restrictions on Force: The use of deadly force should be prohibited in Section 10. Restrictions/bans on use of chemical and impact weapons (Section 9.3) should also apply to batons, flash - bangs and bicycles. (See mention of baton use in IMLLC #3. ) When Force is Not Force: The PPB continues to separate force at protests from "day - to - day" force in its quarterly Force Reports. Such force should be included up front to explain to the community how often the police are using violence on community members If Misconduct Happens in a Forest and Nobody Sees It: The Directive allows officers to shut down parts of the city in an "emergency" (Section 8.4.1), which is a generous gift to officers who want to keep legal observers and the media from witnessing police violence. Law and Disorder: The Directive defines Civil Disturbance with language including "disorder" and "interference with traffic." These are too vague, and as PCW has pointed out, the police regularly engage in conduct that is uncivil and block traffic when cra cking down on protests. I'll Not Be There For You: The Directive says one option for "public order events" is not to have a police presence (Crowd Stewardship Definition), but should repeat this idea in Section 6 (on Stewardship). The idea of police actions being "necessary" shou ld be removed from Sections 6, 3.1 & 4.2.2 (General Guidelines), 7.3 (Crowd Intervention) and 8.4 (Dispersal). No Legal Obligation to Talk to the Cops: People organizing First Amendment events have no legal requirement to talk with police, and many choose not to. The Directive should make it clear that officers must not take adverse action against a group simply be cause it has refused to communicate with the Bureau. (See CRC DE #4.) Reaching Out, Creeping Out: The Directive tells officers to contact event organizers and "engage in dialogue" (Section 6.1.1.1). A phone call, social media message or other contact from police can be alarming. Encouraging police to use "current technology" (Section 6.1.1.3) does not improve this concern. Are You Going to Ground Us if We Break Your Rules? Having the police lay out "expectations" is paternalistic. We continue to suggest that police and the City post Frequently Asked Questions about guidelines for demonstrations. Reasonableness vs. Correct Decision: An Incident Commander has to "consider what tactics are objectively reasonable" (Section 14.1.2), but not whether the tactics might lead to a desirable outcome. Due Dates for Everyone: Sergeants have to file reports on use of force, munitions and injuries by the end of shift (Section 14.4.7) but members do not have a deadline when to file Force reports. They only need to report how many "less lethal" munitions the y have in their possession after engagement. Guidelines for Taking People's Stuff: A proposed section in 2022 addressed seizing potential weapons from members of a crowd, but now there is no guidance at all about this tactic. Police should not, for instance, take away signs that tell people to regist er to vote (a real incident that led to a $100,000 settlement). Guidelines for Giving People's Stuff Back: The Directive should require the prompt release of property confiscated at protests (CRC 2015). Weapons List: While there are mentions of specific chemical weapons in the new Directive, perhaps there should be a table linked to the Directive explaining exactly what weapons are still in use. Are "aerial distraction devices" (aka flash - bangs) being all owed again? Do crowd control officers use "Kinetic Impact Projectiles (KIPs)" which include what are essentially rubber bullets and "rubber ball distraction devices" (aka less - lethal grenades)? Be clear with the public. (See IMLLC #3.) No Political Profiling: The policy should prohibit officers from targeting individuals based on their clothing or perceived political affiliations (CRC 2015). Luddites Not Allowed: The Directive only suggests using social media to get information to a crowd. Not everyone who goes to demonstrations carries or owns a smart phone. Section 6.1.1.3 refers to "other conventional outlets" for officers to communicate, w ith no examples. Sorry About That, Chief: Section 14.2 refers to the "Operations Section Chief," someone designated by the Crowd Management Incident Commander to develop plans. This is confusing because it apparently does not refer to the Assistant Chief of Operations. If the person is not actually of the rank of "Chief" this should be fixed/clarified. Injuries -- Another Place Needing Specifics: Section 14.5.3 allows individual officers to act outside a Sergeant's direction when protecting themselves or others "from physical harm." The level of harm should be indicated. Cross - Reference Labor Policy: The Bureau should incorporate and cross - reference parts of Directive 635.00 on strikes and job actions into the Crowd policy. See https://www.portland.gov/policies/police - directives/fieldoperations - 0600/063500 . Include Airplanes and Drones: The Bureau's Air Support Unit frequently flies over protests, and the PPB has now acquired drones (which are supposedly not being used at protests), but there is no discussion of their role at demonstrations in this Directive. Language should be included, and remind pilots of ORS 181A.250. Back to Basics: The Bureau should include a Definition for Freedom of Speech referencing the First Amendment to the US Constitution, and Oregon's Article I. These definitions were cut out in 2022. ------------- DIRECTIVE 1015.00 LESS LETHAL WEAPONS (previous comments in December 2023) __New/Updated Comments: Failure to Launch: We believe that some officers, particularly those with the Special Emergency Reaction (should be Response) Team, use chemical weapons fired from firearm - type launchers. There is a lot of new language about "handheld" weapons and the word "launched" is crossed out in some places but not others. Both terms are used in the Definition for Tear Gas. Please clarify. Been Watching Too Much "Jaws": Section 7.1.6 prohibiting Taser use on people near or doused in flammables now has a clause saying the prohibition doesn't count if deadly force is justified. Someone is watching too many action movies where they blow up the antagonist. Think about the public relations if you deliberately burn someone to death. Not Sure Why But We Like It: Section 7.1.6 which suggested having "immediate cover" (ie someone with a gun) when officers use Tasers has been cut. PCW is not unhappy about this change. And yes, that's a double negative. __Previous Comments, Summarized: When It's OK, or Not, to Use Less Lethals. The Force Directive (1010.00) contains restrictions on Less Lethal Weapons, and those should be repeated here. There also should be more clarity on when the weapons are allowed to be used. Officers and the public should not have to cross - reference multiple documents to understand the limits. For Instance, Older Persons: A previous list of people who should not have "less lethals" used on them should be put back in; one such type was people over the age of 60. Or People with Epilepsy: Section 7.2.4 does say officers should avoid using Tasers against persons who seem to be in mental health crisis, but should add, for instance, people who may have epilepsy or other vulnerable conditions. Get Medical, STAT!: PCW continues to think the weapons policy should guarantee officers allow medics to tend to people suffering from chemicals and other weapons, similar to the requirement in 635.10 Section 10.3.2. Columbo, You're Too Close to This Case, You Should Sit This One Out: Section 7.3 gives Supervisors the responsibility to ensure that an officer gathers photographic evidence; it should be clear it can be a non - police investigator and must not be the same o fficer who used force. Are Sentient Animals "Weapons" or "Tools"?: PCW continues to express concern that the Less Lethal Weapons and Tools Directive includes the use of police dogs. Do the police handlers consider their companion animals as "weapons" or "tools"? Less - Lethal but Not Non - Lethal: Section 1.3 cautions that these weapons "can still result in death or serious injury." The Bureau should carry forward to the entire Directive the warning from the Definition of "Impact Munition" in Directives 1020 & 1021, which says such weapons are "not to be considered non - lethal." On that note, the current Definition of Kinetic Impact Projectiles uses the term "non - lethal." Clarify Restrictions on Crowd Use: The Directive should include any restrictions on Less - Lethal weapons use for crowd control to avoid cross - referencing confusion. Follow the Law: The Ninth Circuit Court of Appeals ruled -- many years ago now -- that Tasers are a serious enough use of force that they can only be used when there is an "active threat." The Directive does not reflect this limitation. Warning, Danger, Danger: Officers should not be allowed to use "arcing" (creating an electrical "zap" in the air with the Taser) or to activate the laser light to warn a suspect (7.1.3), especially since warning shots from a firearm are prohibited (1010 Se ction 9.4.1.1). Section 7.2.2 also, counter to de - escalation concepts, allows a Taser to be used to threaten or coerce a person to "manage a potential or actual physical confrontation." Focus, People: Section 4.1 says "to minimize exposure to non - targeted persons," which is only meaningful if paired with a prohibition on indiscriminate use (see our comments on 635.10). More Clarity on Exceptions: Section 4.2 supposedly prohibits using chemical weapons on the driver of a vehicle, but allows such use with "justification" or when there is "no reasonable alternative." If the Bureau wishes to retain exemptions, please list al lowable circumstances. Similarly, Section 2.3 restricts the use of batons/impact weapons on the "head or throat, neck, spine or groin unless deadly force would be authorized," another loophole. Wherefore Art Thou Continuum of Force? There are references in the Taser section about "avoid[ing] a use of a higher level of force" (7.2.4 and 7.2.5), but the Bureau was very deliberate in eliminating their continuum of force, so how does an officer (or c ommunity member) know what levels of force are higher than others? CONCLUSION This entire process continues to be frustrating, as discussions that affect the community are happening behind closed doors with the US DOJ and the Police Associations. Again, we appreciate that changes are sometimes being made which align with the comment s made by Portland Copwatch, but they are few and far between. We again suggest that the Bureau actively visit the appropriate advisory body when certain topics come up. The Behavioral Health Unit Advisory Committee gets to comment on the Mental Health Dir ectives, but they meet behind closed doors -- and their comments are not included in the Universal Review packets. The Training Advisory Council should hear about training policies, and the Citizen Review Committee and/or Portland Committee on Community Eng aged Policing should hear about policies like these, which are of great concern to people who feel they've been mistreated by the police. Dialogue can do more to improve community police relations than 1000 block parties. Thank you, -- dan handelman, and other members of Portland Copwatch * - PCW previously believed this to be a Black woman, based on the poor quality of the video at the Training Advisory Council meeting. The online video seems to show the person is white. ** - except for the crowd policy, where our final eight comments were cut off by the online form and the Bureau did not incorporate them from the email version we sent in.